The New Health-Care Fight: Abortion Coverage in State Exchanges

While the congressional fight over health-care reform has wrapped up and legislators moved on, a new, state-level battle over abortion coverage has just begun.

The fight comes courtesy of Section 1303 of the Patient Protection and Affordable Care Act (page 779 here), which reiterates states' rights to regulate abortion coverage among their insurers. The key sentence: "A state may elect to prohibit abortion coverage in qualified health plans offered through an Exchange in such State if such State enacts a law to provide for such a prohibition."

This provision actually does not give states any rights they didn't have before. As Nick Baumann over at Mother Jones recently, and astutely, pointed out, "states have had the right to pass laws regulating insurance, including banning abortion" for over six decades now. Five states (Idaho, Kentucky, Missouri, North Dakota, and Oklahoma) already do so, only allowing insurers to cover abortion if the life of the mother is endangered (the Oklahoma expectation is wider, allowing for coverage in cases of rape and incest).

This sentence in Section 1303 didn't change the existing law—but in the world of abortion politics and policy it was important for two main reasons. First, it drew scrutiny to a relatively dormant area of the abortion debate: insurance coverage (remember that, up until this past November, even the Republican National Committee's insurance policy covered abortion). Second, it restated the existing laws regarding insurance regulation in a way that homes in on abortion, giving those who oppose abortion rights a specific clause to attack.

Leading that charge is Americans United for Life, the country's oldest, anti-abortion rights group. Every year, AUL publishes a set of state-level model legislation to restrict abortion rights (this year's volume, Defending Life 2010, weighs in at 832 pages). Before Obama signed health care into law, AUL had begun distributing a model "federal abortion mandate opt-out act," tailored specifically to the provision mentioned above, which they've added as an addendum to the 2010 collection.

Missouri and Tennessee already have versions of the AUL opt-out bill moving through their respective state legislatures. AUL says it has been in touch with either legislators or individual citizens in 35 other states, who have expressed interest in pursuing similar measures.

What will happen to states where opt-out bills become law? It will vary from state to state. Missouri, for example, already has a law barring nearly all abortion coverage in private insurance. So it's unclear what an additional opt-out law would do, other than reiterate current law and stir up anti-abortion rights fervor. In Tennessee, though, which is set to vote on their opt-out bill later this week, they have less stringent laws on abortion coverage, meaning a new law could shape the plans sold on the Exchange.

Americans United for Life is by no means thrilled with the health-care reform bill that passed and the abortion language it contains. They have blasted it in numerous press releases. But, at the same time, they see an upside. "What we've got mobilizes pro-life legislators," says their president, Charmaine Yoest. "It's not what we wanted, but it's what we'll work with." And, for an anti-abortion rights groups, its not a particularly bad deal: a reiteration of existing law that catalyzed a new wave of activism.